Factual and Procedural Background
This is an appeal against the judgment of Judge Deeny delivered on 28 March 2017 concerning a judicial review application initiated on 26 June 2015 by the Applicant. Leave to apply for judicial review was granted on 17 June 2016 solely regarding the Attorney General for Northern Ireland's ("AGNI's") compliance with Article 2 of the European Convention on Human Rights ("ECHR").
The appeal concerns the deaths of three persons who died in an explosion on 31 August 1988 at an upper flat at 38 Kildrum Gardens, Londonderry. The deceased included the father of the Applicant and two others. The flat belonged to an individual referred to as "Person A". On the morning of the incident, the deceased had gone to check on Person A's welfare. The explosion was triggered when one of the deceased entered the flat, apparently activating a bomb concealed inside a boot.
The police conducted an investigation shortly after the incident, involving witness statements, forensic inquiries, and arrests, but no charges or convictions resulted. An inquest held in December 1989 established the cause of death as injuries from a bomb explosion. Various witnesses, including forensic scientists, police officers, and emergency responders, gave evidence. Person A provided a statement recounting his own abduction by masked men claiming to be from the IRA prior to the explosion.
Following the inquest, little further police investigation occurred. In 2005, a relative of the deceased lodged a complaint with the Police Ombudsman ("PO") alleging police failures in investigating the deaths and protecting the public, including claims that police knowingly allowed an explosive device to remain to protect an informer.
The PO conducted an investigation resulting in a report published in July 2013. The report substantiated several complaints about police failures but rejected the informer protection allegation. The PO was critical of the original police investigation's structure, forensic work, and cooperation from some retired officers, as well as the loss of investigative documentation.
Pre-proceedings correspondence between the family and the AGNI spanned from July 2013 to May 2015, during which the family sought a fresh inquest based on the PO's findings. The AGNI declined to order a new inquest, doubting its utility and relying on the position that Article 2 does not require proceedings solely to establish historical truth.
The Applicant subsequently filed a judicial review application, narrowing grounds to challenge the AGNI's conclusion that the Article 2 investigative obligation had been satisfied and that a fresh inquest would not satisfy that obligation.
The Judge dismissed the judicial review application, holding that the AGNI's decision was lawful and that the case did not warrant ordering a new inquest, viewing the allegations as claims of negligence rather than collusion or misconduct amounting to a breach of Article 2.
Legal Issues Presented
- Whether the doctrine of revival applies to this case, which does not involve the identification and punishment of those responsible for planting the explosive device.
- If revival applies, whether there has been a revival of the Article 2 investigative obligation on the facts.
- Whether the state's obligations under Article 2 have been satisfied in light of the Police Ombudsman's report.
- If the obligations have not been satisfied, whether the court should order the AGNI to exercise discretion to require a fresh inquest.
Arguments of the Parties
Appellant's Arguments
- Significant new information uncovered by the Police Ombudsman's investigation reveals police failures to protect the public, including prior knowledge of the bomb and failure to take action or warn residents.
- Deficiencies in the Ombudsman's investigation, such as refusal of retired officers to cooperate and loss of documents, necessitate a fresh inquest to ensure an effective official inquiry.
- The Article 2 investigative obligation was revived by this new information and requires the AGNI to order a fresh inquest; the Judge erred in interpreting the scope of revival too narrowly.
- The case involves more than negligence and may include disregard by police for public safety, which requires further investigation.
- The AGNI misapplied the case of Janowiec by treating the fresh inquest application as solely for establishing historical truth, thus excluding Article 2 obligations.
- The existence of civil proceedings does not discharge the State's Article 2 obligations, contrary to the Judge’s conclusion.
- The court should allow the appeal and declare that the AGNI is obliged to order a fresh inquest.
Respondent's Arguments
- The AGNI is not required under Article 2 to order a fresh inquest; no final decision refusing a new inquest has been made.
- The Police Ombudsman's report did not uncover genuinely new material requiring further investigation; it was a thorough investigation of longstanding allegations.
- The Brecknell test for revival is inappropriate here as the case does not involve identification or punishment of perpetrators.
- The Judge correctly held that the Article 2 obligation has not been revived in this context.
- Even if revival applied, the AGNI’s discretion not to order a fresh inquest was properly exercised, considering the weight and context of the material and the practicality of further investigation.
- Claims against police amount only to negligence, not a breach of Article 2 requiring further inquiry.
- The existence of advanced civil proceedings is a relevant factor and may assist in satisfying Article 2 obligations.
- The AGNI lawfully considered Janowiec regarding investigations aimed solely at establishing historical truth, which may apply here.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Brecknell v United Kingdom (2008) 46 EHRR 42 |
Sets out the doctrine of revival of Article 2 investigative obligation where new material emerges after a dormant investigation. |
The court applied Brecknell broadly, concluding revival can apply beyond cases involving punishment of perpetrators, including state responsibility for safeguarding life. |
| Finucane's Application [2019] UKSC 7 |
Confirms revival of Article 2 obligation where new material undermines earlier investigations; emphasizes investigation beyond prosecution facilitation. |
Used to support the conclusion that the Article 2 obligation was revived and remains unsatisfied, requiring further consideration by the AGNI. |
| McGuigan and Another's Application [2019] NICA |
Addresses revival of procedural obligations under Articles 2 and 3; applies 'genuine connection' and 'Convention values' tests for revival in historic cases. |
The court applied principles from McGuigan to assess revival and satisfaction of Article 2 obligations in the present case. |
| Janowiec v Russia (2014) 58 EHRR 30 |
Discusses limits on investigations aimed solely at establishing historical truth; introduces 'genuine connection' and 'Convention values' tests. |
The AGNI relied on Janowiec to deny obligation to order a fresh inquest; the court found this application erroneous in context. |
| McKerr v United Kingdom (2002) 36 EHRR 20 |
Recognizes circumstances requiring further investigation beyond criminal trials to satisfy Article 2 procedural obligations. |
Cited within Brecknell and related jurisprudence to illustrate circumstances triggering revival of investigative obligations. |
| Hackett v United Kingdom (2005) |
Confirms that new or wider issues arising after an original investigation may trigger further investigation obligations under Article 2. |
Supports the court’s approach to revival and the need for ongoing investigative measures when new issues arise. |
| R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 |
Establishes that Article 2 procedural obligations apply even where death is caused by a third party, focusing on state’s duty to protect life. |
Used to support the broader interpretation of Article 2 obligations beyond direct state involvement in the death. |
| Edwards v United Kingdom (2002) 35 EHRR 19 |
Similar to Amin; applies Article 2 procedural obligations in death in custody cases involving negligence. |
Supports the principle that state must conduct effective investigations even absent direct state involvement in death. |
| R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 |
Recognizes state’s positive obligations to protect life in situations of known risk, triggering Article 2 procedural duties. |
Cited to illustrate categories of cases where Article 2 procedural obligations arise due to state’s duty to safeguard life. |
| Oneryildiz v Turkey (2005) 41 EHRR 20 |
Establishes state’s duty to investigate deaths where state responsibility is potentially engaged, including failure to protect life. |
Supports the view that procedural obligations under Article 2 extend to cases involving state failures to protect life. |
| Calvelli and Ciglio v Italy (2002) |
Addresses variability in form of investigations required by Article 2 depending on circumstances. |
Referenced to support the principle that investigation forms may vary and civil proceedings can contribute to satisfying Article 2. |
| Mastromatteo v Italy (2002) |
Confirms variability in investigations required under Article 2 depending on case specifics. |
Supports the court’s recognition of different possible investigative mechanisms to satisfy Article 2. |
| Dumpe v Latvia (2018) |
Reiterates that states have a margin of appreciation in choosing means to fulfill Article 2 obligations. |
Supports the court’s view that the AGNI has discretion in selecting appropriate investigative measures. |
Court's Reasoning and Analysis
The court analysed whether the procedural obligation under Article 2 of the ECHR to conduct an effective investigation into the deaths had been revived and whether it had been satisfied. The court found that the doctrine of revival, as articulated in Brecknell, applies not only to cases where new material may lead to the identification and punishment of perpetrators but also more broadly to cases involving state responsibility to safeguard life.
The court considered authorities including Brecknell, Finucane, and McGuigan, applying their principles to the facts. It concluded that the complaints raised in 2005 by the deceased’s relative met the threshold for revival of the Article 2 investigative obligation. The Police Ombudsman's report was viewed as a response to this revived obligation rather than the cause of revival.
However, the court found that the Ombudsman's report, while substantiating many complaints, lacked sufficient detail and evidential clarity to satisfy the Article 2 obligation fully. The investigation was hampered by non-cooperation of retired officers and loss of documents, and key decisions, such as placing the area 'out of bounds,' were insufficiently explained.
The court acknowledged the AGNI’s discretion under section 14 of the Coroners Act (Northern Ireland) 1959 to order a fresh inquest but emphasized that this discretion must be exercised consistently with Article 2 obligations. The court held that the AGNI and the Judge had erred in narrowly interpreting the scope of revival and in concluding that the Article 2 obligations had been satisfied.
The court declined to issue a mandamus ordering the AGNI to hold a fresh inquest, recognizing the need for the AGNI to reconsider the matter in light of the court’s judgment, including factors such as the feasibility of further investigation, availability of witnesses, and the existence of civil proceedings that might assist in fulfilling Article 2 obligations.
Holding and Implications
The court ALLOWED THE APPEAL and declared that the Article 2 investigative obligation was revived in 2005 and remains unsatisfied. The AGNI’s previous decision not to order a fresh inquest was based on an erroneous interpretation of the law and insufficient assessment of the investigative obligation.
The court did not order mandamus compelling the AGNI to hold a fresh inquest but required the AGNI to reconsider the position in light of this judgment, including the possibility of a fresh inquest or other means to satisfy Article 2. The decision leaves open the AGNI’s discretion, subject to compliance with Article 2 obligations.
No new precedent was established beyond the clarification and application of existing Strasbourg and domestic authority concerning the revival and satisfaction of Article 2 investigative obligations in historical cases involving state responsibility to protect life.